Lower barriers of entry for new firms and more flexibility in structuring a business organisation are the two key factors motivating the introduction of the new company law. In general, policymakers use new company law initiatives to encourage entrepreneurship, innovation and cooperative arrangements. This paper distinguishes the diverse strands of company law reforms arising in the United States, Europe and Asia and points to the underlying conditions that shape the markedly different reform outputs. Our analysis points to three important factors – (1) private ordering; (2) fiscal transparency; and (3) limited liability – that effect the incentives for new firm creation. However, we find that many of the new company law reforms are incomplete. Nevertheless, these new company law reforms retain the ability to generate rents due to their adaptability and responsiveness to social and economic change.

This note reviews the implementation of EC Council Regulation 1346/2000 on insolvency proceedings by UK courts. Two recent decisions in the United Kingdom – Hans Brochier Holdings Ltd v. Exner (HBH) and Re Collins & Aikman Europe SA (C&A) – provide an indication of how UK courts will interpret the Regulation while implementing the United Kingdom's newly established corporate insolvency regime and, specifically, the Enterprise Act 2002 and its overriding objectives. In HBH, the Court's decision to regard the German forum as the company's centre of main interest and thus as the forum for the main insolvency proceedings was influenced by the Court's perception that certain social security protections would only be provided to the company's employees if the company's insolvency was administered in Germany, thus providing the company employees – who formed part of the company's creditors ‘as a whole’ – better protection in insolvency. In C&A, the practice of providing creditors with oral assurances that their respective national insolvency protections would be respected by the administrators was approved by the Court. This is consistent with the purpose of furthering the objective of ‘rescue’, as the secondary proceedings may only be opened with a view to winding up the company.

This case note comments on three important judgments delivered by the Court of Justice of the European Communities (full court) on 4 June 2002, concerning restrictions on the acquisition of shares in companies in Portugal (Case C-367/97), France (Case C-483/99) and Belgium (Case C-503/99) in relation to the free movement of capital guaranteed by the EC Treaty. In doing so, it analyses these judgments from two angles. First, it scrutinises the legal reasoning of the Court, particularly with regard to the recognition of the free movement of capital as a fully-fledged freedom and the relationship between capital movements and the freedom of establishment. Second, it considers the practical consequences of the judgments for Member States. While noting some minor problems of interpretation in relation to the judgments, this case note assesses whether the Member States retain some control over the acquisition of share capital in strategic companies.

A Danish Green Paper published in July 2010 provides an in-depth analysis of current EU law on insider dealing against the background of the case law of the Court of Justice of the European Union, and provides some very useful examples that illustrate the extent of the ban on insider dealing and thereby also when trading may be considered lawful.

The article is divided into three parts:

— the present situation,

— the theoretically possible solutions,

— a weighing of pros and cons, guided by a standard of regulatory efficiency.

Austrian courts are faced with a tremendous wave of investor lawsuits, more than 1,200 are still pending. This challenging situation has given the Austrian Supreme Court the opportunity to clear up a lot of legal questions concerning inadequate investment advice and prospectus liability and to accept and develop new legal instruments to enforce claims of investors and compensate their damages.

The main focus lies therefore not on questions of ‘classical’ capital market law but rather on fundamental issues of civil law such as contract law and transactions. Instead of dealing with the clauses of the MiFID and the Prospectus Directive, which are of course implemented in Austrian law, the investor and the courts refer to compensation claims under civil law by transferring old-fashioned civil law issues such as avoidance on the grounds of error and warranty claims to modern and dynamic capital market law with ongoing success.

A cornerstone for the take-off of the development towards competition in European telecommunications markets was the Commission of the European Communities' British Telecom decision in 1982 and its confirmation by the European Court of Justice in 1985. According to this decision, British Telecom should no longer be permitted to forbid the high-speed forwarding of telex messages between foreign countries by competitive agencies in Great Britain. The procedural setting of this case was most unusual because the Italian government and not British Telecom appealed against the Commission's decision. Moreover, the British government intervened, taking sides not with the Italian government, but with the Commission. The important message of the British Telecom case has been that the Commission of the European Communities is able to apply the Treaty of Rome's competition rules in the European telecommunications administration based on the public law of the different member countries.

Given that there are a number of incentives for antitrust plaintiffs to sue in English courts, English jurisdictional decisions in such actions are of far-reaching importance for the future of private antitrust enforcement in the European Community. In Provimi, the High Court of England and Wales recently handed down one of the first judgments in Europe regarding the vitamins cartels and asserted its jurisdiction. The question before the High Court was whether vitamins purchasers have an arguable claim against a subsidiary of a cartelised manufacturer, where the subsidiary implemented the cartel without knowledge of the price-fixing agreement, and whether such a claim could arise even if there was no contractual relationship between the purchasers and the subsidiary in question. The High Court held that there was an arguable claim and that it had jurisdiction to hear claims against non-English subsidiaries as long as one of the subsidiaries was domiciled in the United Kingdom. This case note argues that the High Court was right to assume that there was an arguable claim, but that its reasoning is deficient. Invoking the European law principle of effectiveness, it argues in favour of easing or reversing the burden of proof for particular facts in private antitrust litigation. This case note also takes issue with the interpretation of certain jurisdictional agreements in the decision, which – if construed correctly – would have barred the High Court from finding that it had jurisdiction in respect of some of the claims.

The article analyses some US federal court decisions which by relying on the so-called revenue rule rejected civil claims of foreign sovereigns against major tobacco companies based on tax losses suffered due to the smuggling of contraband tobacco products into the claimants' territories. The revenue rule deals with the domestic court's jurisdiction to enforce penal, revenue or other public law claims of foreign states. First, the article discusses the alleged rationale and the unclear scope of the globally accepted revenue rule. Then, it turns to the question whether the revenue rule was rightly applied by the courts to the civil claims of the foreign sovereigns. Finally, it questions the alleged rationale of the revenue rule and argues for its abandonment.

Dispute resolution without looking into the eye of a ‘judge’ — can this be regarded as the way of the future, or should one rather concentrate on traditional court, arbitration or ADR proceedings?

As shown above, an online mechanism is risky and may have disadvantages vis-à-vis more traditional dispute resolution mechanisms. Therefore, ODR cannot become the only alternative of such proceedings, at least not in the current state of technical development and given the customs of a large number of the participants in e-commerce. Also, the necessary technical standards have their price, in particular where consumers are concerned. The only exceptions are proceedings in which very simple fact or law patterns must be adjudicated such as in the UDRP mechanism.

Model case procedures have some fundamentals in common with collective redress in civil law countries. This is particularly true in the field of investor protection. This area is highly regulated and marked by resulting enforcement failures, which led the German legislator to the enactment of the KapMuG and its recent amendment, highlighting exemplary elements of model case procedures. A survey of the ongoing activities of the European Union in the area of collective redress and of its repercussions at Member State level therefore forms a suitable basis for the following analysis of the 2012 amendment to the KapMuG. It clearly brings into focus a shift from sector-specific regulation with an emphasis on the cross-border aspect of protecting consumers, towards a ‘coherent approach’ strengthening the enforcement of EU law. As a result, today, regulatory policy and collective redress are two sides of the same coin. With respect to the KapMuG, such a development brings about some tension between its aim to aggregate small individual claims as efficiently as possible and the dominant role of individual procedural rights in German civil procedure. This conflict can be illustrated by some specific elements of the KapMuG: its scope of application; the three-tier structure of a model case procedure; the newly introduced notification of claims; and the new opt-out settlement under amended §§ 17-19.

The development of modern Serbian competition law started in 2005 with the adoption of the Competition Act laying down rules which were generally inspired by European Union law. As is usually the case in countries in transition, the 2005 Competition Act was soon replaced by a new one, adopted in 2009. The 2009 Act further harmonised substantive competition rules with those of the EU, while at the same time empowering the Competition Authority to directly impose fines for infringements of competition law. Although it is evident that the public authorities of Serbia made certain efforts to improve competition law enforcement, it still cannot be concluded that significant progress has been made. In this paper, the authors analyse specific problems which appeared throughout six years of competition law enforcement in Serbia. Some of the problems analysed are so-called built-in errors, arising as a consequence of the choices made by the legislator. Others are, however, the result of wrongful doing by the members of the Competition Authority. Taken as a whole, they represent the main reason for the poor results achieved through competition law enforcement in Serbia. The first problem analysed is that of wrong priorities: the Competition Authority has mostly concentrated on the control of concentrations of undertakings, while generally ignoring restrictions of competition through the conclusion of anti-competitive agreements or through abuse of a dominant position. The second problem emphasised by the authors is the absence of sound economic analysis in most decisions adopted by the Competition Authority. The fining policy of the Competition Authority is also analysed in in this paper. While no fines have been imposed under the 2005 Competition Act, the Competition Authority seems to be trying to ‘catch up’ by imposing fines under the 2009 Act for infringements established in proceedings brought under the 2005 Act. The authors argue that this should be seen as an illegal retroactive application of law. The fourth problem in the enforcement of competition law in Serbia arises from a de facto privileged treatment of undertakings with state-owned capital.

Much of the debate on corporate governance centres on whether there is an invisible hand in the evolution of business organisation law. Janet Dine and Kirsteen Shields take a radically different approach by developing parameters for fair trade and reflexive democracy. This may come as a surprise to more seasoned corporate law readers, but it is hoped that Dine and Shields will stimulate debate as they pledge to mediate between civil society and corporations.